Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-10
THE HIGHER COURTS.
synepses of Decisions Rendered at the
Present Tyler Sitting of the
Texas Higher Courts.
Renderings-Casss Affirmed, Reversed,
demanded and Dsmisised.
Supreme Court.

4
method of establishing the loss OF GER
tifcate of transfer was by the testimony
of the commissioner as the custodian of
records, that he had made diligent search
for the papers in the land Office, and that
they could not be found. 1t was not
sufficient to show by one who was a clerk
in that office not later than 1878 that he
mad seen transfers there as Iale as 1877,
and that they were subsequently missed
from the file. No error. Affirmed.
Gaines, j.
M. W. Wheeler vs.. B. E. Boyd; appeal
from Shelby. Suit for balance on pro-
missOry note, and to enforce lien upon
tract of land, for the purchase money
| Of which it was executed. l. Art. 1900
r S., which provides that surveyor may
Oe, on motion of either party, or by the
court on its own motion appointed to
survey the premises in controversy, ap-
plies only to actions of trespass to try
title, and not to cases of this character.
1t was error to admit the evidence of the
surveyor, appointed at the instance of
defendant, over the objections of
the plaintiff. Plaintiff was allowed
to cross-eXsmine the said surveyor intro
duced by defendant, and as the case will
be reversed on other grounds, we do not
decide whether this was reversible error.
2. The purchasers right Is strictly to
compensation, and not necessarily to an
abatement OF purchase money proportion
ate to the surface deficiency. Where
upon the sale of woodlands the value of
the timber was correctly stated, but the
land was represented to contain more by
tWenty-sII acres than the actual quantity,
he was allowed, as compensation,
the estimated value of twenty
six acres minus the wood.
The court charged the jury in effect that
if they found q material deficiency in the
quantity OF land, thu they would deduct
the value of such deficiency "accordiDg to
the contract price from the whole amount
OF the contract price, and regard the bal
ance as the real price of the land I" The
court then proceeds to instruct them fur
ther what TO do in the event they found
that there was less open land than p. ain
tiff represented, and says: "Then
VIII estimate what is the difference in the
value of The quantity OF the deficiency in
8 condition open and tillable,
and the same quantity unimproved
and deduct this difference from
the contract price also, and
then deduct both the value of the de-
| flciency in the entire tract and the value
of the deficiency in the improved land
compared with the same quantity unim-
| proved, and from the balance, after Oe-
Quoting both these sums, TO BIZ the real
contract price" This charge was erro-
neous, as is shown by the rule laid Gown
above. In g case where the land is
| sold in gross and the quantity stated in
| the conveyance is qualified By the words
'fmore or less" the purchaser will be
released in equity if the DIT iciency be
great. Reversed and remanded. Gaines, J.
G A Msksy vs.. Cronk & Talisfero; ap-
peal from Van Z4ndt. Appellees move TO
. firm, with damages, on certificate show
| ing that appellant gave notice of appeal
and filed his appeal bond, but failed to
| demand or take out any transcript. Held:
The case will be affirmed with 10 pr cent
damaged. Affirmed onIcertifcate. Willie
CD.
2 L. Babb ct al. vs.. Matte Babb; ap-
cal from Franklin; certificate for affirm
auce. The certificate contains no copy Of
the judgment OF the court below, show
ing the parties to the suit or the amount
in controversy. This is.not in conformity
with the rules regulating the require.
ments Of certificates for affirmance, and
the ssme will be dismissed. Dismissed.
Willie, G. j. ..
Pummer Neal VS.. S. W. Hamilton and
wife; appeal from Navarro. Certificate
for sffirTance. The certificate of the
clerk If the District court to the certif-
cate for Stti nance, has no seal of the
District court appended thereto, as Is re-
CURED by law. This is fatal defect and
the certificate will be dismissed. Dis
missed. Willie, G.. j.
W. F. Mills vs.. Wade Brown ct al;
appeal from Shelby county. This is an
ton of trespass to try title. Mary Rob-
erts, whilst widow with three children,
appellees in this cause, applied for pre-
emption of the land in controversy; paid
the surveying fees amounting to IS, then
marred Yarhroush and then moved upon
the land, where they continued to reside
| together until her death, ard he remained
there until some time afterwards, when
| ne sold out his interest in the
premises to the appellant and moved
away. 1t is verg clear that the land was
granted by the stste as pre- compton
| homestead, and the right to it acquired
by reason Of compliance with the pre-
requisites prescribed By the statutes of
our state. Held: In every homestead
pre-emptlon law which has existed in
Texas it has been made prerequisite to
the grant that an actual settlement and
Improvement of the land granted
should have taken place. There cannot
be shadow of doubt that YarDrough
had the same interest in the land as that
held by his wife Or his heirs, and that it
was community estate. And we are Of
the opinion that the fact that Yerbrough's
wife had before marriage filed
a pre-emptlon claim to the land
and paid the Surveying fees out
of her own nancy, does not affect the
right Of her husband to community in
terest in the homestead presumption. The
law does not contemplate that q survey
shall be made, or sn application therefor
filed until the pre-emptors have actually
settled upon the land. The judg-
! ment is reversed and render.